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Published online by Cambridge University Press: 10 October 2022
This article examines how women and girls with disabilities who are survivors of sexual and gender-based violence crimes have a right to access justice under Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD). It explains how the right to access justice requires States to actively address gender and disability stigmas and discriminations that create barriers within justice systems, and how the failure to do so violates the CRPD. Further, the author argues that when a State fails to eliminate such barriers post-armed conflict, the International Criminal Court may then exercise jurisdiction over these crimes in order to raise awareness of crimes against women and girls with disabilities, strengthen domestic justice systems by pressuring States to investigate and prosecute these crimes, and act as a court of last resort for crimes against women and girls with disabilities.
I wish to thank Dr Charles Jalloh, Sofia Perla and Stephanie Cross for their insightful comments on earlier drafts. All errors and omissions are my own.
The advice, opinions and statements contained in this article are those of the author/s and do not necessarily reflect the views of the ICRC. The ICRC does not necessarily represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided in this article.
1 SGBV crimes include both (1) sexual crimes and (2) gender-based crimes. This paper uses sexual and gender-based crimes as defined in International Criminal Court (ICC), Policy Paper on Sexual and Gender-Based Crimes, 20 June 2014.
2 United Nations Population Fund (UNFPA), “Five Things You Didn't Know about Disability and Sexual Violence”, 30 October 2018, available at: https://tinyurl.com/33t8jef7 (all internet references were accessed in September 2022). See also UNFPA, Young Persons with Disabilities: Global Study on Ending Gender-Based Violence, and Realising Sexual and Reproductive Health and Rights, July 2018. While SGBV can also impact boys and men with disabilities, this article focuses solely on SGBV against women and girls with disabilities due to the distinguishing intent behind SGBV crimes and the societal contexts within which these crimes are committed. Crimes against women are often committed to enforce a societal structure in which women are inferior and subordinate to men, whereas SGBV against men is often used to punish, oppress, intimidate and degrade an individual's masculinity. While these crimes are committed in order to disempower all targeted individuals, they occur within different societal structures and gender roles, which can impact how accountability for these crimes is ensured. See ADD International, Disability and Gender-Based Violence: ADD International's Approach: A Learning Paper, available at: https://add.org.uk/sites/default/files/Gender_Based_Violence_Learning_Paper.pdf (discussing SGBV violence against men and boys with disabilities and the need for additional data and research within this area); Plan International, “Fact Sheet: Violence against Women and Girls with Disabilities”, February 2013.
3 Convention on the Rights of Persons with Disabilities, 2515 UNTS 3, 13 December 2006 (entered into force 3 May 2008) (CRPD), Art. 13.
4 While violations of Article 13 of the CRPD can also be addressed through other mechanisms such as national, regional and international human rights bodies, this paper focuses solely on how individual criminal accountability at the ICC can ensure justice when domestic courts are unable to do so for SGBV crimes against women and girls with disabilities.
5 See, generally, World Bank, Brief on Violence against Women and Girls with Disabilities, December 2019, p. 6 (finding that girls and young women with disabilities are nearly ten times more likely to experience violence in their lifetime compared to their non-disabled peers).
6 Early discrimination against girls with disabilities includes being shunned from society due to social stigma surrounding disability, and subsequent exclusions from education and social services. Ibid.
7 Ibid., p. 6; United Nations Department of Economic and Social Affairs, “Women and Girls with Disabilities: Using Both the Gender and Disability Lens”, available at: www.un.org/development/desa/disabilities/issues/women-and-girls-with-disabilities.html.
8 Ortoleva, Stephanie, “Accounting for Women and Girls with Disabilities in Conflict and Crisis Situations: Recommendations for Action and Implementation”, Human Rights Magazine, Vol. 42, No. 4, 2017Google Scholar, available at: www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2016-17-vol-42/disability-rights-under-siege/accounting-for-women-and-girls-with-disabilities-in-conflict-and/.
9 Ibid.
10 Ibid.
11 Ibid.
12 Ibid. (noting that even when displaced women and girls with disabilities can reach refugee camps, these camps are often inaccessible and may require some women and girls with disabilities to rely on others, increasing their risk of experiencing gender-based violence). See World Bank, above note 5, p. 12.
13 UN, Toolkit on Disability for Africa: Culture, Beliefs, and Disability, Division for Social Policy Development and Department of Economic and Social Affairs, 18 September 2016, pp. 13–15 (identifying additional misconceptions surrounding disability such as cultural beliefs that a child's disability was caused by a mother's sin or promiscuity, ancestral curse, or demonic possession). See also Charlotte Baker and Elvis Imafidon, “Traditional Beliefs Inform Attitudes on Disability in Africa. Why It Matters”, The Conversation, 15 June 2020, available at: https://theconversation.com/traditional-beliefs-inform-attitudes-to-disability-in-africa-why-it-matters-138558 (discussing beliefs about disability and traditional animisms, such as that bad deeds caused a child to have a disability).
14 Groce, Nora Ellen and Trasi, Reshma, “Rape of Individuals with Disability: AIDS and the Folk Belief of Virgin Cleansing”, The Lancet, Vol. 363, No. 9422, 2004CrossRefGoogle ScholarPubMed; World Bank, above note 5, p. 8.
15 Hidden Sisters: Women and Girls with Disabilities in Asia and Pacific Region, UN Doc. ST/ESCAP/1548, 1995.
16 Ibid., p. 1.
17 European Parliament Directorate-General for Internal Policies, Discrimination Generated by the Intersection of Gender and Disability, May 2013, p. 56. See, generally, European Economic and Social Committee, “Europe Must Do More to Protect Women with Disabilities”, 7 July 2018, available at: www.eesc.europa.eu/en/news-media/news/europe-must-do-more-protect-women-disabilities.
18 European Disability Forum and Fundación Cermi Mujeres, Ending Forced Sterilization of Women and Girls with Disabilities, May 2016, p. 13.
19 Ibid., pp. 20–27. Post-Second World War, both the United States and Canada also had forced sterilization laws: see ibid., p. 26. See also Linda A. Thompson, “A New Report Highlights the Scandal of the Forced Sterilization of Women in Europe”, Equal Times, 8 May 2018, available at: www.equaltimes.org/a-new-report-highlights-the#.YEUx2l1Kg6F (reporting that Spain, the United Kingdom and Croatia all still allow the use of forced sterilization with court orders in certain circumstances).
20 Despacho de la Tercera Fiscalía Superior Penal De Lime Señor Fiscal Luis Landa Burgos, Amicus Curiae Brief on the War Crimes Research Office at American University Washington College of Law, 2 November 2017; see also Pons, William, Lord, Janet E. and Stein, Michael Ashley, “Disability, Human Rights Violations, and Crimes against Humanity”, American Journal of International Law, Vol. 116, No. 1, 2022, p. 58CrossRefGoogle Scholar (discussing crimes against persons with disabilities as crimes against humanity).
21 Right to Access Justice under Article 13 of the Convention on the Rights of Persons with Disabilities, UN Doc. A/HRC/37/25, 27 December 2017, para. 3.
22 Ibid., p. 5.
23 Ibid., pp. 10–14.
24 Ibid., pp. 10–11.
25 Ibid.
26 Ibid., pp. 14–15.
27 Ibid.
28 List of Issues in Relation to the Initial Report of the Bolivarian Republic of Venezuela, UN Doc. CRPD/C/VEN/Q/1, 29 October 2019, para. 13(a) (emphasis added).
29 EU, “Article 13: List of Illustrative Indicators on Access to Justice”, 2020.
30 Ibid., para. 13.18.
31 International Principles and Guidelines on Access to Justice for Persons with Disabilities, August 2020 (International Principles and Guidelines), Principle 8.
32 Committee on the Rights of Persons with Disabilities, Communication No. 12/2013, 17 April 2015.
33 Right to Access Justice under Article 13, above note 21; Stephanie Ortoleva, “Women with Disabilities and the Justice System: Rights without Remedies”, World Justice Project, 20 February 2013, available at: https://worldjusticeproject.org/news/women-disabilities-and-justice-system-rights-without-remedies.
34 S. Ortoleva, above note 33.
35 Women Enabled International, Comments for Report on Access to Justice for Persons with Disabilities, Washington, DC, 1 May 2017. See also Right to Access Justice under Article 13, above note 21.
36 Council of Europe, Implementation of the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: Improving the quality of life of people with disabilities in Europe 2006-2015, 2015, p. 56.
37 Women Enabled International, above note 35, p. 2.
38 Ibid. (reporting on practices in Ghana and India).
39 Ibid., p. 3; Crown Prosecution Service, “The Code for Crown Prosecutors: Controlling or Coercive Behaviour in an Intimate or Family Relationship”, 30 June 2017, available at: www.cps.gov.uk/legal-guidance/controlling-or-coercive-behaviour-intimate-or-family-relationship.
40 Crown Prosecution Service, above note 39.
41 Women Enabled International, above note 35.
42 Women Enabled International, above note 35, p.4.
43 University of Leeds et al., Access to Specialised Victim Support Services for Women with Disabilities Who Have Experienced Violence: National Report, United Kingdom of Great Britain and Northern Ireland, June 2014, p. 24.
44 See also Center for American Progress, Transforming the Culture of Power, 31 October 2019, pp. 21–24 (discussing how resources in the United States for college campus sexual assault are not in accessible formats).
45 Ibid.; see also World Federation of the Deaf and World Association of Sign Language Interpreters, “Contribution of OHCHR study on article 13 of the Convention on the Rights of Persons with Disabilities”, available at: www.ohchr.org/sites/default/files/Documents/Issues/Disability/RightAccessJusticeArticle13/CSO/WFD-WASLI.pdf.
46 Nancy Smith, Sandra Harrell and Amy Judy, How Safe are Americans with Disabilities?, Vera Institute for Justice, April 2017, p. 20.
47 See also UN, above note 13, p. 15 (noting regional barriers in Africa such as attitudinal barriers in police, lawyers, and judges resulting in persons with disabilities seeming less credible as victims and witnesses; lack of knowledge on the right to report crimes; physical barriers at police stations and courtrooms; and lack of victim advocates at health-care facilities where evidence may be collected); European Parliament Directorate-General for Internal Policies, above note 17, p. 56 (the European Economic and Social Committee acknowledged that it and its member States lacked strong institutions to protect the human rights of women and girls with disabilities).
48 Department of State, “The Nuremberg Trial and the Tokyo War Crimes Trials (1945-1948)”, Office of the Historian, available at: https://history.state.gov/milestones/1945-1952/nuremberg.
49 National WWII Museum, “The Nuremberg Trial and Its Legacy”, 17 November 2020, available at: www.nationalww2museum.org/war/articles/the-nuremberg-trial-and-its-legacy.
50 Evans, Suzanne E., Forgotten Crimes: The Holocaust and People with Disabilities, Ivan R. Dee, Chicago, IL, 2004, pp. 32, 41–94, 111Google Scholar; “T4 Program”, Britannica, available at: www.britannica.com/event/T4-Program; United States Holocaust Memorial Museum (USHMM), “People with Disabilities”, available at: www.ushmm.org/collections/bibliography/people-with-disabilities.
51 “T4 Program”, above note 50; USHMM, above note 50. See, generally, Karowicz-Bienias, Sylwia Afrodyta, “Nazi Crimes on People with Disabilities in the Light of International Law – a Brief Review”, Białostockie Studia Prawnicze, Vol. 23, No. 4, 2016Google Scholar.
52 S. E. Evans, above note 50, p. 145; see also S. A. Karowicz-Bienias, above note 51.
53 S. E. Evans, above note 50, p. 145.
54 Ibid., p. 146.
55 Ibid.; S. A. Karowicz-Bienias, above note 51. In addition to the prosecution of the Nazi doctors, fourteen nurses were also charged for their role in the mass murder of nearly 8,000 adults and children with disabilities at a State hospital. However, all fourteen nurses were acquitted as they stated that they were relying on orders from their superiors – a defence that would likely be held to be invalid under today's “superior orders” doctrine. S. E. Evans, above note 50, p. 147.
56 S. E. Evans, above note 50, p. 146. See also S. A. Karowicz-Bienias, above note 51 (noting the Polish efforts to ensure accountability for the murder of persons with disabilities in Poland, though with ultimately unsuccessful prosecutions).
57 Ibid., p. 159.
58 Ibid., p. 158.
59 Ibid.
60 Ibid., pp. 158–160.
61 See, generally, William Pons, “An Argument for the Prosecution of Crimes against Persons with Disabilities”, Intercross, 11 May 2017, available at: https://intercrossblog.icrc.org/blog/an-argument-for-the-prosecution-of-crimes-against-persons-with-disabilities; W. Pons, J. E. Lord and M. A. Stein, above note 20, p. 58.
62 International Criminal Tribunal for the former Yugoslavia (ICTY), “The Tribunal – Establishment”, available at: www.icty.org/en/about/tribunal/establishment.
63 Ibid.; UNSC Res. 827, 25 May 1993; UNSC Res. 955, 8 November 1994.
64 ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998; Weiner, Phillip, “The Evolving Jurisprudence of the Crime of Rape in International Criminal Law”, Boston College Law Review, Vol. 54, No. 3, 2013, p. 1210Google Scholar. See also Mukwege Foundation, “Jurisprudence of Sexual Violence in Conflict: Important Cases at International Tribunals”, available at: www.mukwegefoundation.org/jurisprudence-sexual-violence/.
65 ICTY, “Celibici Case: The Judgement of the Trial Chamber. Zejnil Delalic Acquitted, Zdravko Mucic Sentenced to 7 Years in Prison, Hazim Delic Sentenced to 20 Years in Prison, Esad Landzo Sentenced to 15 Years in Prison”, press release, 16 November 1998.
66 ICTY, “Landmark Cases”, available at: www.icty.org/en/features/crimes-sexual-violence/landmark-cases; ICTY, Prosecutor v. Kunarac, Kovač, and Vuković, Case Nos IT-96-23, IT-96-23/1, Judgment (Trial Chamber), 22 February 2001.
67 See W. Pons, above note 61.
68 Oosterveld, Valerie, “The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments”, Cornell International Law Journal, Vol. 44, No. 1, 2011, pp. 50–56Google Scholar.
69 Ibid., p. 56.
70 Ibid. (emphasis added).
71 Save the Children, Weapons of War: Sexual Violence against Children in Conflict, 18 February 2021, p. 18.
72 International Justice Monitor, “Background: Jean-Pierre Bemba Gombo”, available at: www.ijmonitor.org/jean-pierre-bemba-gombo-background/; Susana SáCouto, “The Impact of the Appeals Chamber Decision in Bemba: Impunity for Sexual and Gender-Based Crimes?”, International Justice Monitor, 22 June 2018, available at: www.ijmonitor.org/2018/06/the-impact-of-the-appeals-chamber-decision-in-bemba-impunity-for-sexual-and-gender-based-crimes/.
73 International Justice Monitor, “Background”, above note 72. See, generally, SáCouto, Susana and Sellers, Patricia Viseur, “The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-Based Crimes?”, William & Mary Bill of Rights Journal, Vol. 27, No. 3, 2019Google Scholar.
74 Alex Whiting, “Appeals Judges Turn the ICC on Head with Bemba Decision”, Just Security, 14 June 2018, available at: www.justsecurity.org/57760/appeals-judges-turn-icc-head-bemba-decision/.
75 Ibid.
76 S. SáCouto, above note 72 (referencing how in Akayesu, evidence of rape was discovered during a witness's testimony and added to the indictment six months after the trial had already begun).
77 ICC, above note 1; Oosterveld, Valerie, “The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law”, William & Mary Journal of Women and the Law, Vol. 24, No. 3, 2018Google Scholar.
78 ICC, above note 1, p. 5.
79 Ibid., p. 12.
80 Human Rights Watch, Invisible Victims of Sexual Violence: Access to Justice for Women and Girls with Disabilities in India, 3 April 2018.
81 Ibid.; ICC, above note 1, pp. 12–14.
82 Human Rights Watch, above note 80.
83 For a discussion on the broad lack of accountability for crimes against people with disabilities in armed conflict, see, generally, Inclusion Europe, “People with Intellectual Disabilities in Armed Conflict”, 30 October 2012, available at: www.inclusion-europe.eu/people-with-intellectual-disabilities-in-armed-conflict/ (discussing crimes against persons with intellectual disabilities in Sierra Leone and Sudan); see also Michael Howard, “Bombs Strapped to Down's Syndrome Women Kill Scores in Baghdad Markets”, The Guardian, 1 February 2008, available at: www.theguardian.com/world/2008/feb/02/iraq.international1.
84 ICRC, “Disintegration of State Structures”, How Does Law Protect in War?, available at: https://casebook.icrc.org/case-study/icrc-disintegration-state-structures.
85 Christine Beerli, “Keynote Address: Vulnerabilities in Armed Conflicts”, 14th Bruges Colloquium on International Humanitarian Law, 17–18 October 2013; ICRC, “Women in War: A Particularly Vulnerable Group”, 3 January 2007, available at: www.icrc.org/en/doc/resources/documents/feature/2007/women-vulnerability-010307.htm; Human Rights Watch, “UN: High Risk in Conflicts for Children with Disabilities”, 2 February 2022, available at: www.hrw.org/news/2022/02/02/un-high-risk-conflicts-children-disabilities; UN Human Rights, “Women's Human Rights and Gender-Related Concerns in Situations of Conflict and Instability”, available at: www.ohchr.org/en/women/womens-human-rights-and-gender-related-concerns-situations-conflict-and-instability.
86 See World Institute of Disability, The Involvement of Persons with Disabilities in Conflict Resolution and Peacebuilding Efforts: Inclusion of Persons with Disabilities (PWD) as Part of the Solution in the Post-Conflict Arena, August 2014 (discussing the inclusion of persons with disabilities in peacebuilding efforts); Amnesty International, Burundi: No Protection from Rape in War and Peace, 9 October 2007, p. 8.
87 The ICC has investigations in the Democratic Republic of the Congo, Uganda, Sudan, the Central African Republic, Kenya, Libya, Côte d'Ivoire, Mali, Georgia, Burundi, the State of Palestine, Bangladesh/Myanmar and Afghanistan. See ICC, “Situations under Investigation”, available at: www.icc-cpi.int/pages/situation.aspx. The ICC currently has preliminary examinations in Colombia, Guinea, Nigeria, Honduras, the Republic of Korea, the Registered Vessels of Comoros, Greece and Cambodia, Iraq and the United Kingdom, Gabon, the Republic of the Philippines, Venezuela, the Plurinational State of Bolivia, and Ukraine. See ICC, “Preliminary Examinations”, available at: www.icc-cpi.int/pages/pe.aspx.
88 See, generally, ICC, Report on the Activities Performed during the First Three Years (June 2003–June 2006), 12 September 2006; ICC, Report on Preliminary Examination Activities (2014), 2 December 2014; ICC, Report on Preliminary Examination Activities (2015), 12 November 2015; ICC, Report on Preliminary Examination Activities (2016), 14 November 2016; ICC, Report on Preliminary Examination Activities (2017), 4 December 2017; ICC, Report on Preliminary Examination Activities (2018), 5 December 2018; ICC, Report on Preliminary Examination Activities (2019), 5 December 2019. This author reviewed all decisions by Trial Chamber III on the applications by victims to participate in proceedings. Publicly available documents address claims by 4,869 victims, none of which included claims by women and girls with disabilities as victims.
89 ICC, Report on the First Three Years, above note 88.
90 ICC, Prosecutorial Strategy 2009–2012, 1 February 2010.
91 ICC, Report on Preliminary Examination Activities (2011), 13 December 2011, para. 110; ICC, Report on Preliminary Examination Activities (2012), 22 November 2012, para. 147; ICC, Report on Preliminary Examination Activities (2013), 25 November 2013, para. 186.
92 ICC, Report on Preliminary Examination Activities (2011), above note 91, para. 28; ICC, Report on Preliminary Examination Activities (2012), above note 91, para. 31; ICC, Report on Preliminary Examination Activities (2013), above note 91, para. 31; ICC, Report on Preliminary Examination Activities (2014), above note 88, para. 87; ICC, Report on Preliminary Examination Activities (2015), above note 88, para. 125.
93 ICC, Report on Preliminary Examination Activities (2014), above note 88, para. 177; ICC, Report on Preliminary Examination Activities (2015), above note 88, para. 199; ICC, Report on Preliminary Examination Activities (2016), above note 88, paras 50, 292; ICC, Report on Preliminary Examination Activities (2017), above note 88, para. 211; ICC, Report on Preliminary Examination Activities (2018), above note 88, para. 225; ICC, Report on Preliminary Examination Activities (2019), above note 88, para. 186.
94 Edward B. Rackley, “Armed Violence against Women in Burundi”, Humanitarian Exchange, No. 31, September 2005; Julia Steers, “Women Say They Are Being Raped as Part of President of Burundi's Fight to Keep Power”, Time, 14 January 2016, available at: https://time.com/4179101/rape-burundi/.
95 ICC, Report on Preliminary Examination Activities (2016), above note 88, para. 227; ICC, Report on Preliminary Examination Activities (2017), above note 88, para. 248 (reporting that women and girls who were studying, teaching, working, and participating in public affairs experienced repeated attacks, death threats and killings from the Taliban). See also Padmini Murthy, Ushma Upadhyay and Eleanor Nwadinobi, “Violence against Women and Girls: A Silent Global Pandemic”, in Padmini Murthy, Clyde Lanford Smith (eds), Women's Global Health and Human Rights, Jones and Bartlett, Sudbury, MA, 2010, p. 12, available at: http://samples.jbpub.com/9780763756314/56314_CH02_MURTHY.pdf.
96 ICC, Report on Preliminary Examination Activities (2014), above note 88, para. 122 (quoting the Colombian Constitutional Court's Working Group on Forced Displacement).
97 ICC, Report on Preliminary Examination Activities (2019), above note 88, para. 117; ICC, Report on Preliminary Examination Activities 2020, 14 December 2020, para. 134 (the sections on Colombia in the 2019 and 2020 reports addressed accountability for sexual slavery and forced abortions against boys and girls but did not mention the impact of these crimes on girls with disabilities, despite the earlier recognition of a close link in forced displacements). Forced abortions also raise concerns for women and girls with disabilities: see Universidad de Los Andes, “Submission to the Committee on the Rights of Persons with Disabilities for Considering in Drafting General Comment No. 3 on Article 6: Women and Girls with Disabilities”, Program de Accion por la Iglualidad y la Inclsuion Social, 2015, p. 2, available at: www.ohchr.org/sites/default/files/Documents/HRBodies/CRPD/GC/Women/PAIIS.doc; Center for Reproductive Rights, “Submission to the Special Rapporteur on the Rights of Persons with Disabilities – Questionnaire on the Rights of Persons with Disabilities and Bioethics”, 17 October 2019, p. 10 (stating that “[i]n Colombia, the Constitutional Court validated the practice of surgical sterilization of minors with intellectual and psychosocial disabilities. In its decision, the Court explained, ‘The decision to undergo surgical sterilization ensures more dignified living conditions for those who cannot make decisions related to the exercise of their reproductive freedom and that may be exposed to forced pregnancies in detriment of their dignity and personal integrity’”).
98 ICC, Report on Preliminary Examination Activities (2014), above note 88, para. 122.
99 UNFPA, “Five Things You Didn't Know”, above note 2; UN Women, Gender Alert on COVID-19 Afghanistan, No. 10: Women with Disabilities during COVID-19, 25 June 2020. See also Human Rights Watch, “Disability Is Not Weakness”: Discrimination and Barriers Facing Women and Girls with Disabilities in Afghanistan, 28 April 2020; Human Rights Watch, “Afghanistan: Women with Disabilities Face Systemic Abuse”, 27 April 2020, available at: www.hrw.org/news/2020/04/27/afghanistan-women-disabilities-face-systemic-abuse.
100 Women Enabled International, above note 35, pp. 2–5.
101 HRC Res. S-34/1, 12 May 2022.
102 ICC, Policy Paper on Case Selection and Prioritization, 15 September 2016, p. 14.
103 Marco Longobardo, “Factors Relevant for the Assessment of Sufficient Gravity in the ICC Proceedings and the Elements of International Crimes”, Questions of International Law, 30 November 2016, available at: www.qil-qdi.org/factors-relevant-assessment-sufficient-gravity-icc-proceedings-elements-international-crimes/.
104 Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998 (entered into force 1 July 2002), Art. 7(g).
105 See, generally, Paul Seils, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes, International Center for Transitional Justice, New York, 2016. See also Amnesty International, “This Is What We Demand”: Impunity for Sexual Violence against Women in Colombia's Armed Conflict, 2011.
106 See, generally, Megumi Ochi, Gravity Threshold before the International Criminal Court: An Overview of the Court's Practice, ICD Brief No. 19, International Crimes Database, January 2016.
107 Rome Statute, above note 104.
108 See, generally, Carter, Linda E., “The Principle of Complementarity at the International Criminal Court: The Role of Ne Bis in Idem”, Santa Clara Journal of International Law, Vol. 8, No. 1, 2010Google Scholar; Marshall, Katharine A., “Prevention and Complementarity in the International Criminal Court: A Positive Approach”, Human Rights Brief, Vol. 17, No. 2, 2010Google Scholar.
109 ICC, above note 1, pp. 22–23; see also Amnesty International, above note 105.
110 A report by the National Women's Law Center in the United States found that thirty-one out of fifty US states have laws legalizing forced sterilization of persons with disabilities: National Women's Law Center, Forced Sterilization of Disabled People in the United States, 2022. See also Center for Reproductive Rights, “Organizations in Several Countries Reject Decision of the Colombian Constitutional Court Allowing for Sterilization of Minors with Disabilities without Their Consent”, 18 March 2014, available at: https://reproductiverights.org/organizations-in-several-countries-reject-decision-of-the-colombian-constitutional-court-allowing-for-sterilization-of-minors-with-disabilities-without-their-consent/; Open Society Foundations, Against Her Will: Forced and Coerced Sterilization of Women Worldwide, 2011.
111 ICC, Report on Preliminary Examination Activities (2012), above note 91, para. 8.
112 ICC, Report on Preliminary Examination Activities (2017), above note 88, para. 135.
113 Ibid.
114 Ibid., paras 149–153.
115 ICC, Report on Preliminary Examination Activities (2019), above note 88, paras 110–128.
116 Human Rights Watch, Pressure Point: The ICC's Impact on National Justice: Lessons from Colombia, Georgia, Guinea, and the United Kingdom, 3 May 2018.
117 Natasha Godsiff, “The Failure of the International Criminal Court to Prosecute Sexual and Gender-Based Violence”, Cambridge University Law Society, available at: www.culs.org.uk/per-incuriam/the-failure-of-the-international-criminal-court-to-prosecute-sexual-and-gender-based-violence.
118 ICC, “ICC Prosecutor Mr Karim A.A. Khan QC Appoints Seventeen Special Advisers”, Press Release No. ICC-CPI-20210917-PR1611, 17 September 2021.
119 Ibid.
120 ICC, above note 1, p. 16 (stating that the OTP would work to “[u]nderstand the intersection of factors such as gender, age, race, disability … and other status or identities which may give rise to multiple forms of discrimination and social inequalities” (emphasis added) – a promise the Court has yet to fulfil).
121 S. Ortoleva, above note 8.
122 ICC, above note 1, pp. 14–15.
123 See ICC, Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Ground for the Decision on the 345 Applications for Participation in the Proceedings Submitted by Victims, 23 September 2009; ICC, Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, First Decision on Victims’ Participation in the Case, 30 March 2011; ICC, Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, 15 January 2014; ICC, Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Decision on Contested Victims’ Applications for Participation, Legal Representation of Victims and Their Procedural Rights, 27 November 2015; ICC, Prosecutor v. Ruto and Sang, Case No. ICC-01/09-01/11-249, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, 8 August 2011.
124 International Principles and Guidelines, above note 31.
125 See, for example, SCSL, Prosecutor v. Brima, Kamara, and Kanu, Case No. SCSL-2004-16-T, transcript, 27 September 2006, pp. 99–102 (discussing the ability of a hearing-impaired man to give evidence via a sign language interpreter).
126 ICC, Policy Paper on the Interests of Justice, 1 September 2007
127 ICC, above note 1.
128 ICC, Policy on Children, 15 November 2016.
129 This recommendation was first proposed in W. Pons, J. E. Lord and M. A. Stein, above note 20.
130 See, for example, SCSL, Prosecutor v. Charles Taylor, Case No. SCSL-2003-01-T, transcript, 15 May 2008, pp. 9936–9938 (witness discussing how individuals with disabilities who were begging were taken to a river and executed because they were “embarrassing the organization”).
131 For example, recognizing the contributions from the Nuremberg Tribunal and post-Nuremberg exclusion of persons with disabilities in the Holocaust Victim Assets Litigation.
132 See, generally, Phitalis Were Masakhwe, “The Disabled and the Rwanda Genocide: The Untold Story”, Disability World, Vol. 23, April–May 2004 (discussing crimes against persons with disabilities during the Rwandan armed conflict).
133 Rome Statute, above note 104.
